Citation Nr: 0944949
Decision Date: 11/25/09 Archive Date: 12/04/09
DOCKET NO. 07-40 427 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUE
Entitlement to an effective date earlier than January 27,
2005, for the grant of a total disability rating based on
individual unemployability due to service-connected
disabilities (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. A. Booher, Counsel
INTRODUCTION
The Veteran had active service from November 1965 to December
1967, during which time he served in combat in Vietnam. He
was born in 1946.
This appeal to the Board of Veterans' Appeals (Board) is from
actions taken by the above Department of Veterans Affairs
(VA) Regional Office (RO).
The Veteran provided testimony before the undersigned
Veterans Law Judge at the RO on Travel Board in June 2009; a
transcript (Tr.) is of record. At that time, it was
clarified that the issues had been phrased in a variety of
ways, individually and in the aggregate, but that the essence
of the claim is as stated on the first page, above. Having
reviewed the file in that light, the Board finds that this is
the most appropriate manner in which to phrase the current
appellate issue.
It is noted that, in recent correspondence and elsewhere, the
Veteran has seemingly raised the issues of service connection
for a number of other disorders, and more particularly, for
entitlement to EED for various service-connected disabilities
from 1967. These issues have not been fully addressed by the
RO, and are referred for appropriate clarification and
consideration, as required.
FINDINGS OF FACT
1. The Veteran filed a Statement in Support of Claim (VA
Form 21-4138) which is date-stamped as received by the VARO
in St. Petersburg on January 9, 2003. Therein, he indicated
an intention to file "a formal claim later," and his
Veteran's Application for Compensation and/or Pension (VA
Form 21-526) is date-stamped as received by the RO on
January 10, 2003. Both of those submissions claimed service-
connected and non-service-connected disability benefits.
2. By rating decision dated in April 2003, the RO granted
the Veteran a permanent and total disability rating for
pension purposes, effective from January 10, 2003. The
rating decision incorrectly stated that the claim had been
received on January 10, 2003, vice the correct date of
January 9, 2003.
3. Service connection was subsequently granted, in various
incremental rating actions, for posttraumatic stress disorder
(PTSD), rated as 50 percent disabling from August 13, 2003;
coronary artery disease (CAD), status post five vessel bypass
graft, rated at 30 percent from March 5, 2003; diabetes
mellitus, type II with erectile dysfunction, rated at 20
percent from March 5, 2003; peripheral vascular disease, left
leg, secondary to diabetes mellitus, rated at 20 percent from
April 7, 2004; peripheral vascular disease, right leg,
secondary to diabetes mellitus, rated at 20 percent from
April 7, 2004; peripheral neuropathy of the left lower
extremity secondary to diabetes mellitus, rated at 10 percent
from March 5, 2003; peripheral neuropathy of the right lower
extremity secondary to diabetes mellitus, rated at 10 percent
from March 5, 2003; and hemorrhoids, chronic halitosis,
erectile dysfunction, hypertension, and gastritis, each rated
at 0 percent from various dates.
4. A 60 percent combined schedular rating was in effect from
March 5, 2003 (with the highest individual rating being 30
percent); an 80 percent combined schedular rating was in
effect from August 13, 2003 (with the highest individual
rating being 50 percent), and a total disability rating based
on individual unemployability (TDIU) has been in effect since
January 27, 2005.
5. Review of the competent and probative medical evidence of
record raises a reasonable doubt that the Veteran has been
unemployable since the date on which he met the schedular
criteria for a TDIU, on August 13, 2003.
5. The competent and probative medical evidence of record is
against finding that the Veteran was unemployable due solely
to service-connected disability before the award of his TDIU
on August 13, 2003.
CONCLUSION OF LAW
Giving the benefit of the doubt to the Veteran, an effective
date of August 13, 2003, is warranted for the award of a
total disability rating based on individual unemployability
due to service-connected disabilities. 38 U.S.C.A. §§ 1155,
5103, 5107(b), 5110, 7105 (West 2002); 38 C.F.R. §§ 3.102,
3.155, 3.159, 3.321, 3.400, 3.340, 3.341, 4.15, 4.16, 20.200,
20.201, 20.302 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Preliminary Considerations
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced
VA's duty to notify and assist claimants in substantiating
their claims for VA benefits, as codified in pertinent part
at 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).
Given the fully favorable decision contained herein, the
Board finds that any defect in the notice or assistance
provided to the Veteran constitutes harmless error.
II. Applicable Legal Criteria
With regard to the pending appellate issue, the Board has
reviewed the voluminous items of evidence in the appellant's
claims file. Although there is an obligation to provide
adequate reasons or bases supporting this decision, there is
no requirement that all the evidence submitted by or on
behalf of the appellant be discussed in detail. Rather, the
Board's analysis below will focus specifically on what
evidence is needed to substantiate the claim and what the
evidence in the claims file shows, or fails to show, with
respect to the claim. See Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App.
122, 128-30 (2000).
VA will grant a total rating for compensation purposes based
on unemployability when the evidence shows that the Veteran
is precluded, by reason of his service-connected
disabilities, from obtaining and maintaining any form of
gainful employment consistent with his education and
occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16
(2009).
Under the applicable regulations, benefits based on
individual unemployability are granted only when it is
established that the service-connected disabilities are so
severe, standing alone, as to prevent the retaining of
gainful employment. If there is only one such disability, it
must be rated at least 60 percent disabling to qualify for
benefits based on individual unemployability. If there are
two or more such disabilities, there shall be at least one
disability ratable at 40 percent or more, and sufficient
additional disability to bring the combined rating to 70
percent or more. 38 C.F.R. § 4.16(a).
In exceptional circumstances, where the veteran does not meet
the aforementioned percentage requirements, a total rating
may nonetheless be assigned on an extraschedular basis, upon
a showing that the individual is unable to obtain or retain
substantially gainful employment. 38 C.F.R. § 4.16(b). In
reaching such a determination, the central inquiry is
"whether the veteran's service-connected disabilities alone
are of sufficient severity to produce unemployability."
Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).
Consideration may not be given to the impairment caused by
non-service-connected disabilities. See 38 C.F.R. §§ 3.341,
4.16, 4.19.
In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court
referred to apparent conflicts in the regulations pertaining
to TDIU benefits. Specifically, the Court indicated there
was a need to discuss whether the standard delineated in the
controlling regulations was an "objective" one based on the
average industrial impairment or a "subjective" one based
upon the Veteran's actual industrial impairment.
In a pertinent precedent opinion, the VA General Counsel
concluded that the controlling VA regulations generally
provide that veterans who, in light of their individual
circumstances, but without regard to advancing age, are
unable to secure and follow a substantially gainful
occupation as the result of service-connected
disability shall be rated totally disabled, without regard to
whether an average person would be rendered unemployable by
the circumstances. Thus, the criteria include a subjective
standard. It was also determined that "unemployability" is
synonymous with inability to secure and follow a
substantially gainful occupation. VAOPGCPREC 75-91, 57 Fed.
Reg. 2,317 (1992).
The Board is bound in its decisions by the regulations, the
Secretary's instructions, and the precedent opinions of the
chief legal officer of VA. 38 U.S.C.A. § 7104(c).
The Board further observes that being unable to maintain
substantially gainful employment is not the same as being 100
percent disabled. "While the term 'substantially gainful
occupation' may not set a clear numerical standard for
determining TDIU, it does indicate an amount less than 100
percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir.
2001).
For a veteran to prevail on a claim based on unemployability,
it is necessary that the record reflect some factor which
places the claimant in a different position than other
veterans with the same disability rating. The sole fact that
a claimant is unemployed or has difficulty obtaining
employment is not enough. A high rating in itself is a
recognition that the impairment makes it difficult to obtain
and keep employment. The question is whether the Veteran is
capable of performing the physical and mental acts required
by employment, not whether the Veteran can find employment.
See Van Hoose v. Brown, 4 Vet. App. 3 61, 363 (1993).
It is also the policy of the VA, however, that all Veterans
who are unable to secure and follow a substantially gainful
occupation by reason of service-connected disabilities shall
be rated totally disabled. Thus, as noted above, where a
veteran fails to meet the applicable percentage standards
enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating
is for consideration where that veteran is unemployable due
to service-connected disability. 38 C.F.R. § 4.16(b); see
also Fanning v. Brown, 4 Vet. App. 225 (1993).
Thus, the Board must evaluate whether there are circumstances
in this Veteran's case, apart from any non-service-connected
conditions and advancing age, which would justify a total
rating based upon unemployability. Van Hoose, 4 Vet. App. at
363.
In discussing the unemployability criteria, the Court, in
Moore v. Derwinski, 1 Vet. App. 83 (1991), indicated, in
essence, that the unemployability question, that is, the
ability or inability to engage in substantial gainful
activity, had to be looked at in a practical manner, and that
the thrust was whether a particular job was realistically
within the capabilities, both physical and mental, of the
veteran.
The award of effective dates is governed by 38 U.S.C.A. §
5110 and 38 C.F.R. § 3.400. According to the statute and
regulation, the effective date of an evaluation and award of
compensation based upon an original claim, a claim reopened
after final disallowance, or a claim for increase will be the
date of receipt of the claim or the date entitlement arose,
whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R.
§ 3.400(b)(2)(i).
III. Factual Background and Analysis
As noted above, the Veteran filed an informal claim on a VA
Form 21-4138 on January 9, 2003, and followed up with his
formal claim on VA Form 21-526 on January 10, 2003; seeking
both service-connected compensation benefits and non-service-
connected pension benefits. On his VA Form 21-526 he said
that he had last worked in December 2002.
By rating decision in April 2003, the RO granted a permanent
and total disability rating for the purpose of payment of
non-service-connected pension benefits, and assigned an
effective date of January 10, 2003. The Veteran has
contended that the award was based primarily on the same
disabilities for which he was then seeking service
connection, and that he then actively pursued those service
connection claims on a continuous basis and was subsequently
successful. The treatment to which he referred in support of
all of those claims was primarily from VA sources,
except for his heart disability, for which he said he had
been seen by a named private physician. He also reported
that he had been seen from 1996 to January 2003, by a
physician in a jail/prison hospital.
At the time of the original rating action in April 2003, of
record were the reports of a VA examination in March 2003, VA
outpatient reports since January 2003, and some information
from a private heart treatment group and a county jail from
1999-2000.
In a rating decision the following month, May 2003, the
Veteran was granted service connection for diabetes mellitus,
type II, and associated peripheral neuropathy of both the
right and left lower extremities, evaluated as 20 percent,
10 percent, and 10 percent disabling, respectively. That
initial grant of service connection for diabetes mellitus and
associated peripheral neuropathy referred to VA examinations
in May 2003, reports from which are also of record.
In another subsequent VA Form 21-4138, after a private
physician had provided a nexus opinion with regard his heart
disease and an association with service and/or diabetes
mellitus, the Veteran insisted that his 100 percent rating be
not on the basis of non-service-connected pension, but rather
service-connected disability, as of January 10, 2003.
Correspondence to the Veteran dated July 14, 2003, noted the
decision by VA to "reopen his prior claim for service-
connection received on January 10, 2003."
The grant of service connection for the various disabilities
was subsequently effectuated, in various incremental rating
actions, for posttraumatic stress disorder (PTSD), rated as
50 percent disabling from August 13, 2003; coronary artery
disease (CAD), status post five vessel bypass graft, rated as
30 percent disabling from March 5, 2003; diabetes mellitus,
type II, with erectile dysfunction, rated as 20 percent
disabling from March 5, 2003; peripheral vascular disease,
left leg, secondary to diabetes mellitus, rated as 20 percent
disabling from April 7, 2004; peripheral vascular disease,
right leg, secondary to diabetes mellitus, rated as 20
percent disabling from April 7, 2004; peripheral neuropathy
of the left lower
extremity secondary to diabetes mellitus, rated as 10 percent
disabling from March 5, 2003; peripheral neuropathy of the
right lower extremity secondary to diabetes mellitus, rated
as 10 percent disabling from March 5, 2003; and hemorrhoids,
chronic halitosis due to diabetes, erectile dysfunction,
hypertension, and gastritis, each rated as 0 percent
disabling from various dates.
To summarize the overall ratings, the Veteran's combined
service-connected disability rating, under 38 C.F.R. § 3.25,
has been increased in the following chronology:
0 percent from December 12, 1967
60 percent from March 5, 2003
80 percent from August 13, 2003
90 percent from April 8, 2004
TDIU from January 27, 2005 (with special monthly
compensation in effect for loss of use of a creative
organ from May 16, 2005)
In assessing this claim from the outset, the Board
acknowledges that, since he filed his initial claim in
January 2003, the Veteran has indeed actively and timely
pursued his same essential appellate claim for the TDIU
benefits he now enjoys (e.g., as eventually granted some time
later). In fact, he has claimed from the start that
virtually all of his aggregate health problems were due to
service, and have rendered him unable to work from that same
date as the grant of non-service-connected pension benefits.
During the course of the appeal, there has been a great deal
of discussion about when certain individual increased ratings
might be tenable (and, in fact, adjudicative changes have
been made in one or another fashion to implement affirmative
changes in favor of the Veteran in that regard). However, to
resolve this underlying and paramount issue, it is not
necessary to further delve into the specifics of these other
disabilities to fully resolve the pending appellate issue.
As noted above, a TDIU is granted when it is established that
the service-connected disabilities prevent the retaining of
gainful employment. Under 38 C.F.R. § 4.16(a), if there is
only one such disability, it must be rated at least 60
percent disabling to qualify for benefits based on individual
unemployability. If there are two or more such disabilities,
there shall be at least one disability ratable at 40 percent
or more, and sufficient additional disability to bring the
combined rating to 70 percent or more. From the effective
date of his combined 60 service-connected percent rating, the
Veteran's highest individual rating was 30 percent. From the
effective date of his combined 80 percent service-connected
rating, his highest individual rating was 50 percent. Thus,
he first met the schedular TDIU threshold from August 13,
2003.
As noted above, under 38 C.F.R. § 4.16(b), where the veteran
does not meet the aforementioned percentage requirements, a
total rating may nonetheless be assigned upon a showing that
the individual is unable to obtain or retain substantially
gainful employment, without consideration of impairment
caused by non-service-connected disabilities. In this case,
the Board agrees with the contention of the Veteran and his
representative that he both met the schedular criteria, and
was unemployed, on and after the time he was awarded the 80
percent combined rating from August 13, 2003, with a 50
percent rating for PTSD as the highest individual rating.
However, from the effective date of non-service-connected
pension benefits, in January 2003, the evidentiary record
shows neither the qualifying percentages of service-connected
disability nor unemployability caused solely by his service-
connected disabilities. The Veteran had then been recently
released from incarceration, and said he had not worked since
December 2002. Other than his testimony and contentions, the
record is devoid of evidence that he was unemployable due
only to his service-connected disabilities, prior to his
meeting the schedular TDIU criteria in August 2003. With all
due respect for the contention of the Veteran's
representative that the effective date of the TDIU should be
the date of the original claim (from which non-service-
connected pension was granted), the evidentiary record does
not support service-connected unemployability prior to August
13, 2003. By law, the effective date is fixed in accordance
with the facts found, and is the date of receipt of the claim
or the date entitlement arose, whichever is later. 38
U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i).
The Board does, however, believe that the reasonable-doubt
doctrine supports our granting an earlier effective date for
TDIU. In view of the foregoing, the Board finds that the
evidence is evenly balanced and, resolving the doubt thus
raised in favor of the Veteran, concludes that the effective
date for his TDIU award is warranted from August 13, 2003.
ORDER
An earlier effective date, from August 13, 2003, is granted
for the award of a total disability rating based on
individual unemployability due to service-connected
disabilities.
___________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs